All posts by Nicholas Stephanopoulos

More on the Judging Elections Clause

In a recent post, Ned expresses skepticism about the House exercising its power to judge its members’ elections. I agree that it’s a difficult political question whether the House should invoke its Article I, Section 5 authority. But as I explore in this recent paper, historically, legally, and practically, this strategy sits on firmer ground than Ned’s post suggests.

Historically, the House used to resolve electoral disputes all the time. Over its history, it has settled more than six hundred such cases. More significantly, the House has often used its Article I, Section 5 power to reject the apparent winners of House races and to seat their opponents. Around 120 contestants have prevailed in their challenges and so taken seats initially thought to have been won by someone else. In another 70 or so cases, the House vacated the seat and called for a new election. So it wouldn’t be “norm-shattering” for the House to make use of the Judging Elections Clause; it would be a revival of a precedent that held for much of U.S. history.

Legally, Ned objects to the House refusing to seat a beneficiary of gerrymandering because that practice isn’t “unlawful or tainted by any illegality.” But even the current Supreme Court, the same Court that authored Rucho, concedes that severe gerrymandering is unconstitutional. The Court just (wrongly) thinks that the practice is nonjusticiable and so can’t be policed by the federal courts. Nothing in Rucho hints that non-judicial actors, like the House, can’t enforce the constitutional prohibition on severe gerrymandering.

Moreover, the legality of an election under state or federal law isn’t dispositive for Article I, Section 5 purposes. What is dispositive is the House’s judgment about whether the election was conducted appropriately. Consider Ned’s example of the Fifteenth Amendment, which was ratified in 1870. In the Forty-First Congress—so prior to the Fifteenth Amendment’s ratification—the House unseated five Democrats from former confederate states (and replaced them with their Republican opponents). These Democrats owed their apparent elections to discrimination, violence, and fraud against African Americans: exactly what the Fifteenth Amendment would soon (but didn’t yet) prohibit. So the House unseated the Democrats not because of any unconstitutionality but rather because of the House’s own condemnation of racial discrimination in voting.

Finally, practically, there’s a straightforward way for a current House to prevent a future House from undoing its decisions about whom to seat or oust. It’s to make these decisions before the future House is sworn in, during the period between the election and the beginning of the next Congress. Having made these decisions, the current House would simply instruct the Clerk to seat members in the next Congress consistently with the current House’s determinations. It would be shocking if the Clerk, elected to her position by a majority of the current House, failed to follow that same majority’s instructions.

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Testimony on the Implications of Brnovich

I had the chance to testify at today’s House hearing on Brnovich and its implications along with Sean Morales-Doyle, Robert Popper, and Ezra Rosenberg. My written testimony can be found here, and a few excerpts are below (focusing on how Congress should respond to the Court’s decision).

This brings me to my third point: Congress need not and should not accept the shackles the Court has placed on Section 2. To restore Section 2 to its proper role, Congress should consider adopting the disparate impact framework that is already used in areas such as employment and housing—and that Justice Kagan endorsed in her powerful dissent. Under this approach, the plaintiff would first have to prove that an electoral practice causes a statistically significant racial disparity. The defendant would then have the chance to demonstrate, through particularized evidence, that the practice is necessary to achieve an important state interest. Finally, the plaintiff could try to show that this interest could be achieved by a different, less discriminatory policy.

This framework is deeply familiar to litigants and courts, having been in place for almost half a century. This framework also avoids the constitutional issues that might be raised by a pure disparate impact standard—one that invalidates laws solely because of their racial disparities. Most importantly, unlike the extratextual factors of the Brnovich Court, this framework is effective. It would impose liability whenever electoral regulations give rise to statistically meaningful and unnecessary racial disparities. It would thus further Congress’ objective, expressed in Section 2 but thwarted by the Brnovich Court, of American elections no longer plagued by racial inequities.                

But Congress should not just revise Section 2 in response to Brnovich. It should also protect the right to vote on a nonracial basis in two further ways. One of these is affirmatively specifying which electoral practices states must and must not use, at least in federal elections. This is the strategy of H.R. 1, the For the People Act, as the bill currently stands. The other way that Congress should safeguard the franchise is by creating a new cause of action, available to all citizens of all backgrounds, against unjustifiably burdensome electoral policies. This claim would be an ideal complement to Section 2, targeting needless burdens rather than racial disparities in the electoral process. In combination, the two theories would make voting both more racially equitable and more universally accessible.

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Brnovich and the Conflation of Disparities and Burdens

In mainstream constitutional law, there’s a sharp distinction between claims based on rights burdens and claims based on unequal treatment. Substantive due process is the quintessential doctrine of rights burdens. In that area, the theory is always that some right (privacy, procreation, abortion, etc.) has been overly or unjustifiably encumbered. In contrast, equal protection is the classic locus of grievances based on unequal treatment. Here, the argument is always that certain individuals have been treated differently than other individuals (often on the basis of race, sex, or some other protected classification).

The same distinction between rights burdens and unequal treatment holds when the Constitution is applied to election law. Anderson-Burdick sliding-scale scrutiny is the election law-specific doctrine of rights burdens. An Anderson-Burdick claim always asserts that the right to vote (or some other related right) has been impermissibly encumbered by some governmental regulation. It’s the degree of that encumbrance that’s pivotal under Anderson-Burdick—not whether the encumbrance is uniformly or differentially distributed among the population. On the other hand, the crux of a Bush v. Gore challenge is indeed the differential impact of some governmental policy (or set of policies). Most commonly, the argument is that voters in certain geographic areas are affected differently by electoral rules than voters in other geographic areas.

There’s no question on which side of this divide Section 2 of the Voting Rights Act falls. Section 2 is violated when elections aren’t “equally open” to minority citizens in that they have “less opportunity” than other citizens to participate. The italicized terms—equally, less—are the distinctive elements of an unequal treatment theory. They make clear that Section 2 seeks to eliminate racial disparities in voting. They also indicate that Section 2 isn’t concerned with burdens on voting per se. Voting burdens only fall within Section 2’s purview when they cause disparate racial impacts.

Regrettably, the Supreme Court’s decision in Brnovich blurred this distinction between rights burdens and unequal treatment. One of the Court’s five factors—“the size of any disparities in a rule’s impact on members of different racial or ethnic groups”—is entirely appropriate. The size and significance of racial disparities are highly relevant in all disparate impact suits. In fact, they’re the very first steps of the analysis under the framework used for disparate claims under Title VII, the Fair Housing Act, and many other statutes.

However, three of the Court’s factors involve rights burdens rather than unequal treatment. Factor one explicitly asks about “the size of the burden imposed by a challenged voting rule.” Factor two inquires whether a regulation was “standard practice” in 1982 (when Section 2 took its current form). This matters, according to the Court, because the 1982 status quo is a “benchmark[] with which the burdens imposed by a challenged rule can be compared.” And factor four instructs courts to “consider the opportunities provided by a State’s entire system of voting.” The whole electoral regime is relevant, again, because “any burden imposed on voters . . . cannot be evaluated without also taking into account the other available means” of voting.

The Court’s conflation of rights burdens and unequal treatment is unfortunate for two reasons. First, conceptually, it undermines a distinction that has long helped to organize constitutional law generally and election law specifically. Encumbering a right is just different, as a matter of logic and (until now) law, from treating people unequally. It’s confusing and unsettling to mix these two separate ideas.

Second, practically, the Court’s decision will force future plaintiffs to prove that an electoral regulation both causes a (sufficient) racial disparity and imposes a (sufficient) voting burden. It will no longer be enough for plaintiffs to establish a statistically significant disparate impact. They’ll also have to show that the disparate impact is the product of a rule that makes it too hard for all citizens (of all races) to vote. But this is just stacking the deck against plaintiffs so they’ll lose more often. It’s inventing additional hoops for plaintiffs in the hope that they’ll fail to jump through all of them. It’s ideological opposition to Section 2, not statutory interpretation.

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Brnovich and the Partial Unification of Disparate Impact Law

I wrote an amicus brief in Brnovich, based on this earlier law review article, recommending the same framework for Section 2 vote denial claims that’s already used for all other disparate impact claims. Under this framework, the plaintiff would first have to show that a particular electoral practice causes a significant racial disparity. Then the jurisdiction would have the chance to prove that the practice is necessary to achieve a substantial state interest. If the jurisdiction made that showing, the plaintiff would have a final opportunity to offer an alternative practice that causes a smaller racial disparity but that still achieves the jurisdiction’s stated interest.

The majority in Brnovich claimed that it rejected the usual disparate impact framework. According to the majority, “We also do not find the disparate-impact model employed in Title VII and Fair Housing Act cases useful here.” However, a better reading of the majority’s opinion is that it embraced some, but not all, of the usual framework. The majority didn’t fully unify disparate impact law, as I urged, but it did partially unify it.

There are two important points of similarity between the majority’s approach and the usual disparate impact framework. The first is that, in both cases, “[t]he size of any [racial] disparity matters.” Documenting a significant racial disparity is a plaintiff’s initial obligation in a conventional disparate impact suit. Doing so is also now critical in a Section 2 vote denial challenge.

The second overlap between the doctrines is that they both now emphasize the strength of a defendant’s interest and the extent to which it’s furthered by a given practice. According to the Brnovich majority, “the strength of the state interests served by a challenged voting rule is also an important factor.” More specifically, an electoral regulation must “reasonably pursue important state interests.” A regulation can’t be justified on the basis of an unimportant interest or if it’s an unreasonable way to promote an important interest.

Turning to the differences between the doctrines, one is that Section 2 vote denial law lacks the formal three-part structure of the usual disparate impact framework. The size of any racial disparity and the strength and fit of the defendant’s interests may be relevant in both cases. But those issues are analyzed simultaneously under the Brnovich majority’s approach, not sequentially as under the usual framework.

Another contrast involves how the fit between a practice and a defendant’s interest is scrutinized. The usual framework requires that a practice be necessary to achieve an interest. On the other hand, under the Brnovich majority’s approach, it’s sufficient if a practice is a reasonable means for pursuing an interest. This is obviously a more relaxed formulation that will allow more defendants to prevail on the issue of tailoring.

Lastly, three of the five factors named by the Brnovich majority have no analogue in the usual framework: the degree of the burden imposed on voting, the prevalence of practices today or in 1982, and the opportunities provided by a jurisdiction’s entire electoral system. To be sure, similar concerns often arise in Title VII and FHA cases. E.g., how onerous is a given employment or housing policy? How unusual is the policy (now or historically)? And how does the policy fit with rest of a defendant’s employment or housing procedures? But these questions are technically irrelevant under Title VII and the FHA, while they’re now material under Section 2.

Put this all together and you can see why the Brnovich majority’s supposed rejection of the usual framework is overblown. Yes, Section 2 vote denial law will now have certain idiosyncratic features (all, not coincidentally, disadvantageous for plaintiffs). But it will share with Title VII and the FHA a focus on whether racial disparities are significant and justified. Large and unwarranted disparities will be suspect under Section 2, just as they are under Title VII and the FHA. This isn’t the full unification of disparate impact law, but it is a step in that direction.

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Strong and Weak Claims After Brnovich

The most doctrinally significant portion of the Court’s opinion in Brnovich is part III.C.1, where the Court announces a series of factors that will be particularly salient in Section 2 vote denial cases from this point forward. These factors are (1) the magnitude of the voting burden imposed by a practice, (2) the degree to which a practice was widespread in 1982, (3) the size of the racial disparity caused by a practice, (4) the ease of voting under a state’s whole electoral system, and (5) the strength of the state interests underlying a practice. I just wrote a column criticizing these factors on the ground that they’re almost entirely divorced from the statutory text. But here I want to explore what they might mean for future litigation.

One implication is that relatively few challenges to early and mail-in voting regulations will succeed. As the Court’s opinion points out, early and mail-in voting barely existed in 1982. Any voting burdens imposed by states’ early and mail-in voting rules will also likely be perceived as light. After all, in the Court’s view, it would be permissible (and not unduly burdensome) for a jurisdiction not to offer early or mail-in voting at all. (The same point holds for other post-1982 developments like automatic and same-day voter registration, all-mail elections, drop boxes, curbside voting, etc.)

Second, challenges to relatively novel restrictions will be more likely to prevail. By definition, such restrictions weren’t prevalent in 1982. Because of their newness, their impositions may also seem to courts to exceed the usual burdens of voting. Notably, these novel restrictions may include photo ID requirements for voting. Photo ID laws were unheard of in 1982, and even today, they’re used in only a few states. The recent efforts at election subversion may also fall into this novel category (assuming they can be linked to racial disparities) since they’re unprecedented in modern times.

Third, we’re unlikely to see serious future suits that don’t try to quantify the magnitude of a practice’s disparate racial impact. As the Court noted, the Brnovich plaintiffs didn’t have statistical evidence about the size of the racial disparity caused by the third-party ballot-collection ban. Now that it’s clear that the size of the disparity matters, sophisticated litigants will always find experts to testify about that issue.

And fourth, since states’ whole electoral systems are now relevant, challenges should be stronger in states with lower turnout and/or higher costs of voting. Diverse low-turnout states (in 2020) include Alabama, Arkansas, Louisiana, Mississippi, New Mexico, New York, South Carolina, and Texas. Diverse states where the cost of voting is especially high include Alabama, Arkansas, Florida, Georgia, Mississippi, South Carolina, and Texas. In these places, plaintiffs should be able to argue convincingly that states’ other voting opportunities are highly constricted.

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“The Supreme Court showcased its ‘textualist’ double standard on voting rights”

I wrote this column for the Washington Post on the Supreme Court’s decision in Brnovich. It concludes as follows:

It isn’t textualism to follow statutory language only when doing so is congenial to one’s ideological allies. It isn’t textualism to flout statutory language by creating out of thin air extra-textual checks on a disfavored claim. And it isn’t textualism to interpret the Voting Rights Act as one wishes it had been written, not as Congress actually wrote it. To return to Alito’s metaphor, this is what a judicial pirate ship looks like. It flies textualist colors while plundering one of the key statutory achievements of American democracy.

Still, the extent of the pillage shouldn’t be overstated. Plaintiffs will still be able to prevail in a number of Section 2 cases. Above all, these will be challenges to novel or unusual voting restrictions. By definition, these laws weren’t prevalent in 1982. Because of their newness or distinctiveness, their impositions are also likely to exceed the standard burdens of voting in courts’ eyes.

Additionally, nothing in today’s decision undermines Congress’s authority to correct the court’s blunder. There’s not a word suggesting that a more aggressive statutory test — for example, one invalidating any practice that causes a significant racial disparity unless it’s necessary to achieve a substantial state interest — would be constitutionally problematic. Fortuitously, Congress is considering the John Lewis Voting Rights Advancement Act, which would revive a different portion of the law. That bill is the ideal vehicle to fix this problem, too. By enacting some new statutory language, Congress could bring an end to the court’s extra-textual adventurism.

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The draft Colorado map

Yesterday, Colorado became the first state to publish a draft congressional map. PlanScore’s analysis of the map is below. It would be slightly skewed in a Republican direction, with an expected efficiency gap of 2.5%, an expected partisan bias of 4.0%, and an expected mean-median difference of 1.4%, all in Republicans’ favor. Note also that one district (the Seventh) is predicted to be barely Republican; if that district flipped then the map would be tilted modestly toward Democrats.

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Joe Manchin and Computer Models

Joe Manchin’s memo outlining his views on the For the People Act includes the following policy that he supports: “Ban partisan gerrymandering and use computer models.” In light of Manchin’s centrality to the legislative process, it’s worth unpacking how computer models can be used in redistricting—and how they would be used under the current text of H.R. 1 / S. 1.

1. Proof of Concept: First, redistricting algorithms can be used to prove that a “better” map than the enacted plan could have been drawn. Suppose that the enacted plan is highly biased in a party’s favor, and that the party argues that the bias is attributable to the plan’s compliance with nonpartisan criteria: compactness, respect for county and municipality boundaries, and so on. Redistricting algorithms can then be deployed to definitively rebut this claim. If it’s possible to produce a map that’s less biased than the enacted plan, and that satisfies the nonpartisan criteria at least as well, then the enacted plan’s bias can’t be justified by those criteria.

2.  Generation of an Optimal Map: Second, well-intentioned line-drawers can use redistricting algorithms to identify an “optimal” (or at least a very good) map. Line-drawers must simultaneously follow a wide range of requirements: equal population, the Voting Rights Act, state constitutional criteria, and if H.R. 1 / S. 1 becomes law, partisan fairness and respect for communities of interest, neighborhoods, and political subdivisions. Humans are surprisingly good at achieving multiple redistricting goals at the same time. But computers are better. They can often produce maps that dominate the best human product on every specified dimension.

3. Generation of a Gerrymander: Third, by the same token, partisan line-drawers can use redistricting algorithms to find a map that’s highly advantageous for their party while still complying with all nonpartisan criteria. Again, humans are skilled at crafting gerrymanders whose districts look reasonable and violate no law. Again, though, computers are better, often coming up with maps that are even more biased (and even better-looking) than any human creation.

4. Production of a Comparison Set: Lastly, redistricting algorithms can be used to generate an ensemble of maps with which the enacted plan is compared. The usual idea is for the maps in the ensemble to perform at least as well as the enacted plan in terms of every nonpartisan goal the plan was trying to achieve—but to be created without any consideration of partisan data. After the maps have been produced, partisan data is then used to calculate the bias of both those maps and the enacted plan. If the enacted plan is more biased than most or all of the maps in the ensemble, that’s powerful evidence that the plan was designed with a partisan motive.

So which of these uses would be required, permitted, or prohibited by H.R. 1 / S. 1 (as it currently stands)? Two different provisions would encourage (though not compel) redistricting algorithms to be employed as proof of concept. First, s. 2403(b)(2)(B)(ii) states that a plan has the effect of unduly favoring or disfavoring a party if its bias exceeds a certain threshold and there exist “alternative plans, which may include, but are not limited to, those generated by redistricting algorithms,” which are less biased and still compliant with all other legal requirements. Redistricting algorithms would thus be one intuitive way to establish the existence of less biased, legally compliant, alternative maps.

Second, s. 2403(b)(4) states that no plan shall be found to violate the ban on partisan gerrymandering “unless one or more alternative plans could have complied with” the Constitution’s equal population requirement and the Voting Rights Act “without having the effect of unduly favoring or disfavoring a political party.” Again, redistricting algorithms are a logical method for demonstrating that equipopulous, VRA-compliant, reasonably fair maps could have been created.

H.R. 1 / S. 1 would further permit (without encouraging) redistricting algorithms to be used for the generation of an optimal map and/or the production of a comparison set. A commission sharing Manchin’s enthusiasm for computer models could deploy one to design a map that satisfies all legal requirements. Of course, this isn’t the only way to craft a lawful plan. Likewise, a plaintiff seeking additional evidence about an enacted plan’s partisan intent or effect could try to show that the plan is more biased than most or all of the maps in the computer-generated ensemble. But no such showing is required by H.R. 1 / S. 1, and it would often be easier for a plaintiff to prove partisan intent and effect in other ways.

Lastly, H.R. 1 / S. 1 would prohibit redistricting algorithms from being used for the generation of a gerrymander. Any such usage would plainly evince “the intent . . . of unduly favoring or disfavoring any political party.” Any gerrymander worth its salt would also exceed the bill’s bias threshold of one seat for smaller states and two seats for larger states.

It’s impossible to tell from Manchin’s cryptic reference to “computer models” whether he entirely agrees with H.R. 1 / S. 1’s current approach to redistricting algorithms. But I hope he does. In particular, I hope he doesn’t want to force plaintiffs to show that the enacted plan is more biased than most or all computer-generated maps. Despite recent technical advances, there remain significant concerns about the representativeness of computer-generated maps. If they’re not representative of the relevant universe of maps, then they’re not a suitable benchmark for comparison. Additionally, computer-generated maps created without consulting partisan data may be biased in one or another party’s favor. This bias would then be “baked in” as the legal ideal—even if it’s possible, even easy, to design unbiased maps for the jurisdiction in question. For these reasons, I hope that by “computer models” Manchin meant nothing more, and nothing less, than what’s already in H.R. 1 / S. 1.

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Illinois’s Draft Plan

Illinois released draft state legislative district plans on Friday evening. Here’s PlanScore’s analysis of the state house map (hat tip to Brian Amos for converting the map into a usable digital format). It’s predicted to have a pro-Democratic efficiency gap of 2%. That’s somewhat more pro-Democratic than the existing state house plan, which had an average efficiency gap of 3% in a Republican direction from 2012 to 2018. But it’s still a low figure not indicative of a significant bias in either party’s favor.

Notably, Illinois’s draft state house map pairs this small efficiency gap with numerous noncompact districts, especially in and around Chicago. It’s likely that if the map’s districts were less oddly shaped, the map would be considerably more tilted toward Republicans. The map thus squarely presents the vexing issue of redistricting baselines. Is partisan symmetry the right benchmark? In that case, the map is exemplary since it should accurately translate the partisan preferences of Illinois voters into legislative seats. Or is the baseline what a redistricting process would produce if it ignored election results and prioritized nonpartisan criteria like compactness and respect for political subdivisions? If so, the map is probably skewed substantially in a Democratic direction (though further analysis would be necessary to prove that point).

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Further Changes to the John Lewis VRA

Joe Manchin made news yesterday by endorsing H.R. 4 (which would revive Section 5 of the VRA) over H.R. 1 and by recommending nationwide preclearance, applicable to all fifty states. Nationwide preclearance would solve one of the Shelby County Court’s two problems with Section 5: that it differentiated among states, subjecting some but not others to preclearance (and based on decades-old data, to boot). Nationwide preclearance wouldn’t differentiate among states at all. So there’s no way it could violate states’ supposed right to be treated the same as all other states.

However, nationwide preclearance wouldn’t address the Shelby County Court’s other concern: that preclearance itself may no longer be an available remedy under the Fourteenth and Fifteenth Amendments because modern voting conditions supposedly aren’t bad enough anywhere to justify extraordinary federal intervention. As the Court put it, the claim that “the preclearance requirement, even without regard to its disparate coverage, is now unconstitutional . . . . ha[s] a good deal of force.”

There’s another revision to H.R. 4, though, that would solve this problem, too: applying the law to federal elections only. If the law were restricted to federal elections, then Congress could pass it under the Elections Clause of Article I and the Electors Clause of Article II. Crucially, these provisions aren’t limited by the congruence-and-proportionality standard for exercises of Congress’s Fourteenth Amendment enforcement power, and they’re also not limited by Shelby County’s various glosses on Congress’s Fifteenth Amendment enforcement power. Under the Elections Clause, in particular, Congress has essentially plenary authority over congressional elections. It could write a comprehensive code for congressional elections, if it wanted. This greater power certainly includes the lesser power of subjecting all state regulations of congressional elections to preclearance.

This package of nationwide preclearance for federal electoral regulations only would be very effective at stopping voter suppression. Most voting restrictions disproportionately burden minority citizens. Under well-established precedent, that disparate racial impact would lead to preclearance being denied to these measures. The limits on absentee voting, drop boxes, polling place hours, and so on recently adopted by Florida, Georgia, and other states—they’d all be blocked because they’d worsen the electoral position of minority citizens.

But nationwide preclearance for federal electoral regulations only would be mostly impotent against partisan gerrymandering. The reason is that aggressive partisan gerrymanders are perfectly compatible with maintaining (or even increasing) the numbers of minority ability districts. Republican mapmakers, in particular, are usually happy to preserve (or even augment) these districts because they inefficiently pack Democratic voters, leaving fewer Democrats for plans’ remaining districts. As an illustration, consider the 2010s experiences of the southern states formerly covered by Section 5. All of their congressional maps were drawn by Republicans and biased in a Republican direction (egregiously so in AL, GA, NC, and SC). With the exception of Texas, all of their maps were also precleared. Section 5, that is, did next to nothing in the 2010s to thwart partisan gerrymandering.

Accordingly, if H.R. 4 is to be the vehicle for electoral reform instead of H.R. 1 (per Manchin’s suggestion), it needs to be supplemented by provisions that would stop partisan gerrymandering. The most logical candidates are H.R. 1’s own anti-gerrymandering sections, which would (1) require states to use independent redistricting commissions for their congressional plans, and (2) prohibit maps that have the intent or effect of unduly favoring a party. I’d prefer H.R. 1 (in its entirety) and H.R. 4 (as last passed by the House) to this combination of a revised H.R. 4 supplemented by H.R. 1’s anti-gerrymandering sections. But if H.R. 1 ultimately has no path forward (because of Manchin), this combination would still be a momentous accomplishment.

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“The For the People Act’s Missing Piece”

I wrote this column for Democracy Docket about a provision I think should be part of any electoral reform legislation: an “Anderson-Burdick fix,” enacted under Congress’s Elections Clause authority, that instructs courts to apply heightened scrutiny to voting restrictions. In recent years, the existing Anderson-Burdick doctrine has become increasingly unfavorable to plaintiffs. Congress should change that unsatisfactory regime and so guard against whatever new measures would-be vote suppressors manage to think up.

But the For the People Act wouldn’t invalidate all of Georgia’s new restrictions. It wouldn’t reach the ban on mobile voting centers. Nor would it reverse the criminalization of helping hungry or thirsty voters. Left standing, too, would be the legislature’s takeover of the elections board. The reason for these omissions is the Act’s underlying strategy. It specifies many steps that states must take to make voting easier, and it outlaws many policies that hinder voting. But it doesn’t include any catch-all provision applicable to all voting limits—including ones Congress hasn’t yet imagined. The Act thus leaves open the door to novel barriers erected by wily vote suppressors. 

How could the Act slam this door shut? The most promising proposal is an amendment drafted by Rep. Mondaire Jones (D-NY). Under this amendment, any regulation that imposes a “severe or discriminatory burden” on voting in federal elections would be unlawful unless a jurisdiction could prove that the rule is the least restrictive way to further a compelling state interest. (Lawyers call this strict scrutiny.) Any regulation that imposes a milder voting burden would also be invalid unless it significantly furthers an important state interest. (This is intermediate scrutiny in legalese.) 

Rep. Jones’s amendment would eliminate the For the People Act’s blind spot with respect to new kinds of voting restrictions. Take the elements of Georgia’s law that would be unaffected by the Act as it currently stands. Rep. Jones’s amendment would reach those policies. All of them burden voting to some degree—potentially to an extreme degree if Georgia’s legislature uses its new powers to discard lawfully cast ballots. So the policies would be upheld only if Georgia could convince a court that they’re sufficiently linked to a vital enough interest. . . .

Is it constitutional, though, for Congress to require heightened judicial scrutiny for all burdensome regulations of federal elections? Without a doubt. The Elections Clause grants Congress essentially plenary power over the “Manner of [congressional] elections.” Even the Roberts Court—no friend of expansive congressional authority—has conceded that, under the Clause, Congress could “provide a complete code for congressional elections.” It’s also unremarkable for Congress to use the Clause to create new bases for lawsuits. Earlier electoral statutes in the 1990s and 2000s did exactly that. . . .

[D]issatisfaction with the constitutional rule is certainly a driver of Rep. Jones’s amendment. In the runup to the 2020 election, the Roberts Court upheld one voting restriction after another. Over its entire history, the Roberts Court has never ruled in favor of a plaintiff alleging an undue burden on her right to vote. Rep. Jones’s amendment is necessary, then, because today’s courts all too often fail to protect the franchise. Their dismal record is the impetus for congressional intervention.

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The New Oklahoma Maps

Oklahoma just became the first state to release draft district maps for the next decade. These maps are notable in that they use American Community Survey data — not Census data — to equalize population. The maps were also released in the least user-friendly way possible, without shapefiles or block assignment files that would facilitate their analysis.

Nevertheless, PlanScore executive director (and data whiz) Mike Migurski managed to evaluate the maps’ likely partisan effects. And they’re atrocious. The state house map has an expected pro-Republican efficiency gap of 13%, remaining in double digits in almost any electoral environment. The state senate map has an expected pro-Republican efficiency gap of 15%, also remaining in double digits in essentially all electoral conditions. These are staggeringly bad scores, at the outer edge of the historical distribution. They’re a preview of the ruthless gerrymandering we’re likely to see this cycle in states with single-party control of redistricting. And they probably explain why Oklahoma released the maps in such a nontransparent format — to try to prevent their partisan implications from being apparent.

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“Election Law Clinic launches at Harvard Law School”

Here’s an article about the Election Law Clinic launching this summer at Harvard Law School, as well as a Q&A with the Director, Ruth Greenwood. This is a very exciting development that will further add to HLS’s offerings in the election law space.

Harvard Law School today announced the launch of the new Election Law Clinic. Aimed at providing law students with direct hands-on experience in litigation, legislation, administrative practice, and policymaking, the new clinic will give students the opportunity to work on a broad range of cutting-edge issues in areas such as redistricting, voting rights, campaign finance, and party regulation.

While many of the top law schools now offer courses in election law, Harvard is the first law school in the country to launch an in-house clinic designed entirely around a practice in election law. The Election Law Clinic joins the 46 legal clinics and student practice organizations that make up the school’s clinical program.

Ruth Greenwood, who joined HLS in January 2020 as a lecturer in law and launched the Voting Rights Advocacy and Litigation externship clinic, will direct the expanded in-house Election Law Clinic.

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Slimming Down Democracy Reform

Ned Foley and Rick Hasen have each written pieces arguing that H.R. 1—the omnibus electoral reform bill recently passed by the House—should be significantly narrowed. Ned would prefer a package combining a ban on partisan gerrymandering (a Democratic priority) with a nationwide voter ID requirement (favored by Republicans). Alternatively, Ned would prefer a nationwide non-retrogression rule, barring states from restricting any existing voting opportunities. For his part, Rick would keep some of H.R. 1’s voting and redistricting provisions, add a new coverage formula for the Voting Rights Act, but scrap H.R. 1’s sections on campaign finance, ex-felon reenfranchisement, Supreme Court ethics, and presidential tax returns.

Ned’s and Rick’s proposals are both motivated, in part, by a legislative calculation. They think their ideas would be more likely than H.R. 1 to attract the votes of Senate Republicans—maybe even the ten such votes it would take to break a filibuster. Ned writes that his package could “secure the necessary 60 votes for Senate passage.” Similarly, Rick argues that his blend of parts of H.R. 1 with a new VRA coverage formula could “assur[e] that there are more than 50 senators—including perhaps some moderate Republicans—to support the bill.”

Now, Ned and Rick might be right. Maybe H.R. 1 won’t win significant Senate Republican backing—but their proposals would. Every shred of evidence I’ve seen, however, suggests that their ideas would get exactly as many Senate Republican votes as H.R. 1: zero. No Senate Republican has expressed any interest in (much less support for) assigning congressional redistricting to independent commissions: a key plank of both Ned’s and Rick’s compromises. Nor has any Senate Republican advocated any new federal measure protecting the franchise (again, a crucial element of both Ned’s and Rick’s packages). To the contrary, elite Republican opinion has been virtually unanimous in defending the prerogative of states to burden voting as they see fit. And when the House debated a new VRA coverage formula in 2019, just one Republican voted in favor. Mitch McConnell then consigned the bill to a quiet death, declining to take any Senate action on it.

The implausibility of attracting significant Senate Republican support is nicely illustrated by National Review writer Dan McLaughlin’s response to Rick’s column. Requiring states to offer at least two weeks of early voting? Only if federal law “also impose[s] maximums” on early voting. Enacting a new VRA coverage formula? “[T]he entire preclearance project is a bad idea because it gives too much arbitrary power to the federal executive branch.” Establishing independent redistricting commissions? “This is a non-starter; conservatives simply do not trust unelected ‘nonpartisan’ entities.” Which Senate Republican(s) would react differently from McLaughlin? Especially in the face of overwhelming pressure to hold the party line and deny Democrats a victory on an issue as important as electoral reform?

To be fair, Rick has another legislative rationale for his proposal: maintaining the unity of Senate Democrats. In his view, excising H.R. 1’s provisions on campaign finance, Supreme Court ethics, and presidential tax returns would prevent moderates like Joe Manchin and Kyrsten Sinema from defecting. But I’m unaware of any evidence that these policies threaten to “pull apart majority support in the Senate.” Campaign finance reform is favored by a supermajority of the public. This supermajority includes Manchin, who signed into law a public financing program as governor of West Virginia and has cosponsored a Senate bill calling for small donor matching. As for Supreme Court ethics and presidential tax returns, they’re tiny pieces of H.R. 1, accounting for just two of its nearly four hundred sections. It defies belief that any Senate Democrat would scuttle the whole project over such relative trivialities.

That said, I agree with Rick that it’s almost certain that not every Senate Democrat supports every aspect of H.R. 1. Fortunately, the Senate’s choices aren’t limited to accepting H.R. 1 as is or letting the bill collapse. The Senate can also amend the bill—extensively—to ensure that Manchin’s and Sinema’s and other Democrats’ concerns are fully addressed. This critical revision process is only now beginning. Where it will lead is anyone’s guess. It could be a set of policies like the ones Ned or Rick outlined. Or it could be any of a thousand other destinations. The point is that Senate Democrats themselves are the best judges of what they can and can’t tolerate in an electoral reform bill. Outside efforts to predict their preferences are likely to be inaccurate.

Two final cautions about enacting a new VRA coverage formula instead of H.R. 1 (which neither Ned nor Rick recommends). First, reinstituting preclearance is at least as legally controversial as anything in H.R. 1. While I couldn’t disagree more strongly with the Shelby County Court, it did say that the argument that “the preclearance requirement [itself] is now unconstitutional” has “a good deal of force.” Second, as potent as Section 5 of the VRA was, it didn’t reach (1) most of the U.S. outside the South, or (2) most partisan gerrymanders in the South. So an America with a revived preclearance regime—but no other reforms—would be one where bad actors could still freely suppress votes and gerrymander in most of the country, and where gerrymandering would still run rampant even in the South.

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